Bruce Pardy, Professor of Law, Queen's University

In the United States and Canada, universities and colleges routinely provide extra time on exams and assignments for students with cognitive and mental health difficulties such as anxiety, depression, obsessive compulsive disorder, learning disabilities, and attention deficit and hyperactivity disorder. In my article published in the Education and Law Journal (“Head Starts and Extra Time: Academic Accommodation on Post-secondary Exams and Assignments for Cognitive and Mental Disabilities" (2016), 25 Education and Law Journal, 191, available free at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828420), I argue that such accommodation is inappropriate. In this piece for the ISEPP Bulletin, I excerpt from and summarize the argument made in that article: granting extra time to some students is unfair to other students in the class and is contrary to the principles of human rights and disability law.

Exams are competitions. In a college or university course, students are in pursuit of high grades. For them, the objective of the course is not merely the education that it offers but the credentials that it provides. A student’s course grade depends in large measure upon how his performance compares to the others in the class. The competition for grades is real and the outcome can carry significant consequences. The competitive nature of assessment is especially acute where the professor is subject to a mandatory grade curve.

To “discriminate” means to distinguish or tell apart. Discrimination is not illegal. Rather, it is an essential tool for functioning in the world. People discriminate constantly. They choose to be friends with some people and not others. Employers hire better qualified candidates rather than those less qualified. In popular parlance, the word “discrimination” has come to be associated with treating people in a way that is illegal, but any instance of discrimination that is not specifically prohibited in legislation is allowed. Even when committed on grounds prohibited in legislation, discrimination will not amount to a violation of a right if the requirement that results in the discrimination is reasonable and bona fide. A requirement will not be bona fide unless, in the case of disability, the needs created by the disability cannot be accommodated without undue hardship. Undue hardship is a function of cost, inconvenience, and compromise of other important considerations such as health and safety. Extra time on exams is unjust and creates undue hardship because it skews the competition to the detriment of other students in the class.

The bona fides of any competition are the skills and abilities that the competition tests. The raison d’être of a race is speed: Whose legs can carry them across the finish line fastest? Races discriminate: they distinguish between people based on their speed. Discrimination is the purpose of the race. Since races discriminate against all people based on speed, they also discriminate against people with disabilities that affect speed, but not in a way that offends the law. The discrimination is not illegal or inappropriate. No accommodation need be made.

If a runner with a limp was accommodated with a 20-metre head start, the consequences would be perverse. A 20-metre head start in the 100 metre dash means that she is not really in the race at all. Her finish is not a genuine result. Perhaps she crosses the line first. Perhaps her lead erodes and two runners pass her ten metres from the tape. Perhaps she is overtaken by all but two others. It does not matter; any finish is meaningless. She did not place in the 100 metre race because she did not run it. She is not the fastest in the field, the third fastest, or the third-slowest. Her result is not comparable to the other runners. She ran, but she did not run the race. The record of her finish is a fiction.

In any competition, the legal objective of accommodation is to enable participation: to allow all to compete under the same conditions relevant to the skill that the contest is about. A deaf runner wants to run the race, which is a contest of speed, not hearing. Therefore hearing is a not a bona fide criterion for the race and accommodation is legitimate. The deaf runner can see a green light flash as effectively as the other runners can hear the start gun, so a flashing light to start the race in addition to the gun is an appropriate accommodation. Of course, she must start the race the same distance from the finish as everybody else. Accommodations that enable disabled athletes to participate in the competition make sense, but accommodations that require modification to the rules of play or create advantages over other competitors do not. Disabled runners should be accommodated to the point of undue hardship so that they can run in the race, but no accommodation should be provided to compensate for lack of speed, which would be to impose an undue hardship on the rest of the field. 

When a professor awards an A to the best exam and a B to the one in the middle of the pack, she discriminates between exams. By extension, she discriminates between students on the basis of their cognitive skills and mental abilities. That discrimination is not prohibited. Indeed, as in a race, discrimination is one of the purposes of the exam– to identify and distinguish different levels of academic achievement. Like races, which discriminate against people with disabilities that affect how fast they can run, exams discriminate against people with disabilities that affect how well they can think, learn, analyze, communicate, plan, prepare, focus and perform under pressure. That discrimination is not illegal or inappropriate. No accommodation need be made.

The purpose of exams and assignments is not merely to test knowledge but analytical ability, critical thinking, logic, pattern recognition, spatial reasoning, memory, creativity, organization, speed, focus, concentration, resilience, preparation, and intestinal fortitude. The assessment may test the ability to read and comprehend written language or abstract or mathematical information; to write concisely, efficiently and clearly; to reason and calculate with insight and accuracy; and to concentrate and apply mental skills and faculties to the task at hand. Stress, anxiety, the pressure of performing well in a limited period of time, the difficulties in overcoming procrastination and distraction, the job of completing assignments by their due dates and being prepared for exams by the exam date are important features of university and college education and assessment. These skills and challenges are not collateral to post-secondary education but are central to it. There is no pure core of knowledge unrelated to these other skills and attributes. If students are unable to use and express that knowledge, then they have not been able to use the skills and perform the tasks that the exam seeks to call upon. A student who can exhibit proficiency only when sources of stress are eliminated is like an athlete who can perform at his best only in practice rather than in the big game. Accommodating the student makes no more sense than accommodating the athlete.

The real purpose of claims for extra time is to increase prospects for success, which is not legitimate. Sometimes advocates for students with mental disabilities claim that extra time levels the playing field. This claim is false. Extra time does not level the field but tilts it. Given enough time, many students in the class could put together an exam deserving an A – if they had actually written it within the normal time for the exam. Because they took extra time, it is not an A paper. Claiming the right to extra time and then insisting that what you produce is an A paper is really no different from claiming that you can win the run 100 metre dash as long as you only have to run 80 metres. In neither case is it true that the accomplishment is superior to others who had a more demanding task to perform.

The purpose of accommodation is to enable participation, not to enhance success. Students with mental disabilities are able to participate without accommodation. If they have the same amount of time as everybody else, they are already participating. They simply expect not to do as well as they would with more time. Extra time skews the competition, is unfair to other students, and is inconsistent with the principles of human rights and disability law. Universities and colleges should not provide extra time as an accommodation for cognitive and mental disabilities.